Executive Office for Immigration Review

Board of Immigration Appeals

The petitioner (name not provided to protect his privacy), a United States citizen, filed a Form 1-130 Petition for Alien Relative seeking immediate relative status for his spouse, a citizen of Israel.  The petitioner provided information and supporting documents regarding his citizenship, former marriage, name change information, and necessary documentation of his female to male gender reassignment surgery.

The District Director denied the application because Oregon does not have guidelines for the recognition of marriages involving transsexuals and Oregon does not permit marriages of individuals of the same sex.  Therefore, he concluded that the petitioner failed to demonstrate a valid marriage under Oregon law.

The BIA formulated two questions for determining whether a marriage will be recognized for immigration purposes: (1) Is the marriage valid under state law? (2) If so, does the marriage qualify under the Immigration and Nationality Act?

In other jurisdictions, similar fact patterns have been decided based upon the legal ability of a transsexual to change his or her gender. In Oregon, statutory provisions afford a judicial procedure for legal recognition of a change of sex.  The BIA determined that the Director overlooked these provisions by determining that the state failed to address the issue of gender change for the purpose of marriage.

However, while the petitioner had a judgment from an Oregon court recognizing the petitioner’s change of name, the petitioner did not present evidence that he has sought judicial recognition of a change of sex in an Oregon court as provided for by Oregon law.  The case was remanded in order to allow the petitioner to comply with the specified provisions.

The BIA also remanded the record for the District Director to address the provisions of Oregon law relevant to whether the petitioner entered into a valid marriage under Oregon law.

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Kaur v. Ashcroft

2004 U.S. App. LEXIS 1363

The Petitioner, Rajinder Kaur, petitioned for review of the Board of Immigration Appeals and IJ decision denying her application for asylum and withholding of deportation.  Her application was based on the fact that she fled her native country because she was arrested, beaten, raped, and tortured by local police officials.

The Ninth Circuit Court of Appeals found that the IJ denied the Petitioner’s application after finding that she was not a credible witness.  The Ninth Circuit found that the IJ erred in basing its decision on the Petitioner’s evasiveness during trial; minor inconsistencies regarding various dates; improperly engaging in speculation and conjecture about the possible conduct of militant rebel groups, local police officials, and Indian farmers; and wrongly requiring corroborative evidence. 

The Ninth Circuit found that the issues raised by the IJ did not “go to the heart” of the Petitioner’s claim.  The case was remanded to the BIA for further proceedings.